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Gujarat High Court · body

2013 DIGILAW 319 (GUJ)

General Manager v. Patel Gopalbhai Laxmandas

2013-06-20

Jayant Patel, Z.K.Saiyed

body2013
Judgment Jayant Patel, J.—Admit. Mr. Prajapati appears in all matters for respondent no.1 and waives notice of admission. On behalf of Respondent No. 2, Ms. Maithili Mehta, learned AGP appears and waives notice. With the consent of the learned advocates appearing for both the sides, the matters are finally heard. 2. All appeals are directed against the judgment and award passed by the Reference Court dated 01.01.2013 whereby the Reference Court has awarded additional compensation at Rs. 305 per sq. mtr. plus the statutory benefit of increase in the compensation under Section 23(1A), solatium under Section 23(2) and interest under Section 28 of the Land Acquisition Act (hereinafter referred to as the “Act”). 3. The short facts of the care are that for the project of ONGC, the land at village Santhal, Taluka District Mehsana, were to be acquired. The notification under Section 4 of the Act was published on 14.11.2005. The notification under Section 6 of the Act was published on 13.10.2006. Thereafter, the award was declared on 07.06.2008 and the Special Land Acquisition Officer awarded compensation at Rs. 15 per sq.mtr. As the original owners claimants were not satisfied with the compensation, they raised the dispute under Section 18 of the Act and demanded compensation at Rs. 2000 per sq.mtr. Such disputes were referred to the Reference Court for adjudication being LAR Case Nos. 264/11 to 269/11. The Reference Court at the conclusion of the reference, passed the above referred judgment and award. Under the circumstances, the present appears before this Court. 4. We have heard Mr. Mehta for the appellant, Mr. Prajapati for the Respondent No. 1original claimants and the learned AGP. We have considered the relevant record of the case which has been made available by the learned Counsel for the appellant while supporting the contention on behalf of the appellant. We have considered the judgment and reasons recorded by the reference court. It appears that as such, the issues which arise for consideration in the present matters are covered by the decision of this Court in First Appeal No. 925/13 wherein the question for awarding of compensation for village Kasalpur was to be examined. This Court in First Appeal No. 925/13 had observed thus— “4. It appears that as such, the issues which arise for consideration in the present matters are covered by the decision of this Court in First Appeal No. 925/13 wherein the question for awarding of compensation for village Kasalpur was to be examined. This Court in First Appeal No. 925/13 had observed thus— “4. The perusal of the judgment of the reference court shows that the reference court has relied upon the report of the District Valuation Committee for allotment of the land at village Kasalpura, the very village, to Kasalpura Milk Co-operative Society for construction of house. As per the said report, the valuation was made at Rs. 305 per sq. mtr. In our view, the issues which are raised in the present appeal are covered by the decision of this Court in First Appeal Nos. 927/13 to 933/13, decided by us today. In the said decision, it has been observed at Paras 5 to 12 as under: “5. The perusal of the valuation report dated 15.5.2001 for the valuation of the land at Village Dangarva, which is at Item No. 5 of the Valuation Report shows that the land was to be allotted by the State Government to the Central Government for construction of Telephone Exchange at Staff Quarters. It further shows that after considering the location of the land, the valuation was arrived at Rs. 588/- per sq. mtrs., and thereafter since it was to be used for commercial purpose, 30% is added and the market value was assessed at Rs. 780/- per sq. mtrs. It further shows that the land was bearing Survey No. 3 in village site, which was being used for dumping of waste. Therefore, the other location is considered by the Valuation Committee for the purpose of valuation. The said valuation report has come in the evidence of the claimant as well as the officer of the Valuation Department, was also examined. On the aspects of valuation of the land made for allotment to the Central Government, there is no evidence to the contrary. Under these circumstances, the reliance placed by the Reference Court upon the valuation report could not be said to be erroneous. It may be recorded that this Court, in its decision in the case of State of Gujarat (Supra), at Paragraphs 21 to 28 had observed as under:— “21. Under these circumstances, the reliance placed by the Reference Court upon the valuation report could not be said to be erroneous. It may be recorded that this Court, in its decision in the case of State of Gujarat (Supra), at Paragraphs 21 to 28 had observed as under:— “21. In any welfare State, Government cannot have a dual stand for the same subject. If the land of a citizen is to be acquired, Government has to pay the market price of the land as per the provisions of the Act. Government cannot contend that it shall not pay the market price, since as per the Act it is obligatory on the part of the Government or the acquiring Body to pay the market price as per the provisions of the Act. Similarly when the Government is to allot the land to the citizen or any organization, may be for private or public purpose, it has to be the market price, unless the allotment is for a specific public purpose or by way of a separate class, where a specific concession in the market price is made permissible. In any case, where the reduction of the market price for a specific rate is made permissible, such would be lesser than the market price. These cases where the concession or reduction is to be made, would not exceed the market price. Therefore, it is clear that unless the land is allotted at a concessional price, in normal circumstances when the Government is to allot the land to its citizen or to any body, the price would be the market prices to be fixed by the competent authority by the Government. Hence, we cannot countenance the stand on the part of the learned Addl. Government Pleader that if the Government is to allot the land to any citizen or a body, higher price shall be fixed as the market price, whereas if the Government is to acquire the land belonging to any citizen or any organization, it shall pay lesser price of the land. Government Pleader that if the Government is to allot the land to any citizen or a body, higher price shall be fixed as the market price, whereas if the Government is to acquire the land belonging to any citizen or any organization, it shall pay lesser price of the land. To say in other words, if the Government is to allot ‘A’ land belonging to it to any citizen or to any organization, it will charge ‘B’ price, but if the very ‘A’ land is belonging to the citizen and the Government is to acquire under the Land Acquisition Act, the Government shall pay price lesser than the ‘B’ price to the citizen or the organization. If such is permitted, in our view, it would result into discriminatory and arbitrary approach on the part of the State Government, which cannot be countenanced by the constitutional Court in a welfare State. As observed earlier, if the very ‘A’ land is acquired belonging to the citizen by the Government, the Government would be required to pay the price, in any case, not less than ‘B’ price and to be more specific, Government would be required to pay the price, in any case, not lesser than the price fixed by it for the purpose of allotment of the land to any citizen or organization, of course, subject to the change in the nature and character of the land, if any. 22. Even if the matter is to be examined in light of the aspect as to whether the price determined by the competent authority of the Government for allotment of the government land to any citizen or organization can be said as in exercise of statutory power or authority of the statute or not, it appears that the provisions of the Land Revenue Code are clear. Section 62 under the Bombay land Revenue Code, 1879 (hereinafter referred to as ‘Code’) reads as under :— “Section 62. Unoccupied land may be granted on conditions.—It shall be lawful for the Collector subject to such rules as may from time to time be made by the State Government in this behalf, to require the payment of a price for unalienated land or to sell the same by auction and to annex such conditions to the grant as he may deem fit, before permission to occupy is given under Section 60. The price (if any) paid for such land shall include the price of the Government right to all trees not specially reserved under the provisions of Section 40 and shall be recoverable as an arrear of land revenue.” 23. Rule 37 of Gujarat Land Revenue Rules (hereinafter referred to as the ‘Rules’) provides for manner of disposal of agricultural land, whereas rule 42 provides for disposal of the land for building and other purposes. Rule 37 and Rule 42 read as under:— “37. Survey numbers how to be disposed of.— (1) Any unoccupied survey number not assigned for any special purpose may, at the Collector’s discretion, be granted for agricultural purposes to such person as the Collector deems fit, either upon payment of a price fixed by the collector, or without charge, or may be put up to public auction and sold subject to his confirmation to the highest bidder. (2) In the case of such grants an agreement in Form F shall ordinarily be taken from the person intending to become the occupant. (3) When the land is granted on inalienable tenure the clause specified in Form I shall be added to the agreement. (4) When the land is granted on impartible tenure an agreement in Form F(1), and, when it is also granted in alienable tenure an agreement in Form I(1), shall ordinarily be taken from the person intending to become the occupant. (5) The declaration below the agreement shall be subscribed by at least one respectable witness and by the patel and village accountant of the village in which the land is situate.” 42. Disposal of land for holding and other purposes.— Unoccupied land required of suitable for building sites or other nonagricultural purpose shall ordinarily be sold after being laid out in suitable plots by action to the highest bidder whenever the Collector is of opinion that there is a demand for land for any such purpose, but the Collector may in his discretion, dispose of such land by private arrangement, either upon payment of a price fixed by him or without charge, as he deems fit.” 24. The aforesaid shows that as per Rule 37 an unoccupied land can be granted for agricultural purpose to any person by the Collector and such grant of the land can be either upon the price fixed by the Collector or by public auction and can be without charge also. In the same manner Rule 42 provides that the land can be allotted for nonagricultural purpose by the Collector to the highest bidder unless the Collector in his discretion decides to dispose of the land by private arrangement, either upon the price fixed by him or without charge. 25. In the present matters, we are not required to examine the aspect of exercise of the powers by the Collector without charge or by private negotiation for disposal of the land for agricultural or nonagricultural purpose, therefore, no discussion is required on the said aspect, but the in the present matter, the aspect of power with the Collector for disposal of the land upon the payment of the price to be fixed by him (other than concessional charge) is to be taken into consideration. If the collector has to allot the land as per Section 62 read with Rule 37 or Rule 42 of the Rules, the same shall be at the price to be fixed by him. He has to determine the price of such land before taking decision for allotment of the land. In the case of Ghunshabhai Govindbhai Pancholi vs. State of Gujarat and Anr., reported in 1995(1) GLH 792 , the question arose for consideration about the fixation of the price by the Collector under Section 62 of the code read with Rule 37 of the rules and this Court observed that the Collector has the authority to fix the price to be paid for the land which he grants to a person for agricultural purpose and such price has to be fair, reasonable and just and should not be arbitrary or whimsical and he has also to take into consideration the submissions or the material, which may be submitted by the allottee or the person, who is to be allotted the land. Therefore, it is not possible to accept the contention of the learned Additional Government Pleader that when a price is fixed by the Collector for allotment of the land to any citizen or organization under the Bombay Land Revenue Code read with the Rules, such action for fixation of the price is not in exercise of the statutory powers. Be it noted that the Collector has to exercise the power subject to general orders of the State Government for the mode and manner of fixation of the valuation and the Collector, therefore, while fixing the market price has to take into consideration the view of an expert body, which is the Valuation Committee and thereafter to take final decision. Therefore, it is not a matter where the exercise of the power by the Collector is not in discharge of the statutory function for fixation of the market price. At this stage, it may also be recorded that even under the provisions of Bombay Tenancy and Agricultural Lands Act, 1948, more particularly Section 43 of the said Act, while granting permission to transfer the land, which is held by the agriculturist, who was originally allotted the land as agricultural tenant under the said Act, has to exercise the power for grant of permission upon payment of the premium. At the time when the premium is to be fixed the marked price of the land is to be ascertained by the Valuation Committee of the Government and the opinion is to be considered by the Collector of the valuation made. Therefore, it is not possible for us to accept the contention of the learned Addl. Government Pleader that the valuation made by the Valuation Committee of the Government of the nearby land for the purpose of allotment of the land to any citizen by the Collector cannot be taken into consideration by the Reference Court. Under these circumstances, the contention of the learned Addl. Government Pleader deserves to be rejected, therefore, rejected. 26. The reliance placed upon the decision of the Apex Court in the case of Jawajee Nagnatham vs. Revenue Divisional Officer, Adilabad, A.P. and Others, reported in (1994) 4 SCC 595 ; in the case of Land Acquisition Officer Eluru and Ors. Under these circumstances, the contention of the learned Addl. Government Pleader deserves to be rejected, therefore, rejected. 26. The reliance placed upon the decision of the Apex Court in the case of Jawajee Nagnatham vs. Revenue Divisional Officer, Adilabad, A.P. and Others, reported in (1994) 4 SCC 595 ; in the case of Land Acquisition Officer Eluru and Ors. vs. Jasti Rohini (Smt.) and Anr., reported in 1995(1) SCC 717 , are for the view that the fixation of the valuation in the valuation register for the stamp Act purpose cannot form as a basis for determination of the market value. Such is not the fact situation in the present case. 27. The Apex Court in the case of Lal Chand vs. Union of India, reported in (2009) 15 SCC 769 on the contrary at Paragraph 44 has observed as under:— “44. One of the recognised methods for determination of market value is with reference to the opinion of experts. The estimation of market value by such statutorily constituted Expert Committee, as expert evidence can therefore form the basis for determining the market value in land acquisition cases, as a relevant piece of evidence. It will be however open to either party to place evidence to dislodge the presumption that may flow from such guideline market value. We, however, hasten to add that the guideline market value can be a relevant piece of evidence only if they are assessed by the statutorily appointed Expert Committees, in accordance with the prescribed procedure.” “28. In the present case, the valuation has been made by the Valuation Committee for giving opinion to the District Collector in exercise of the statutory power. The Valuation Committee is comprising of the expert body in the field of valuation, including the District Collector himself, T.P. Authority, etc. Therefore, there is no reason why the valuation made by the Valuation Committee of the Government for fixation of the price for allotment of the land at the very village by way of sale instance or price fixed by the Government for allotment of a land to an organization should not be taken into consideration.” 6. In view of the aforesaid observation, the reliance placed by the learned Judge upon the report of the valuation committee for allotment of the land could be said as on a valid ground. 7. In view of the aforesaid observation, the reliance placed by the learned Judge upon the report of the valuation committee for allotment of the land could be said as on a valid ground. 7. It may be recorded that on behalf of the respondents, no evidence was produced to the contrary. The land in question is located in the same village. It is true that the land, which came to be considered by the Valuation Committee was located in the village site, whereas the lands in question are located outside the village site, but within the revenue limits of the very village. It is also true that the specific evidence has not come on record for showing distance of the land at Survey No. 3, which was allotted for Telephone Exchange and Staff Quarters and the land under acquisition, but the pertinent aspect is that in the said valuation report, the market price assessed in the year 2001 was at Rs.780/-, since the land was to be used for commercial purpose. The learned Judge of the Reference Court has not taken the basis of Rs. 780/- as the market price, but has taken into consideration Rs. 588/- as the market price. The aforesaid would show that the addition made towards commercial use of the land has been already excluded by the Reference Court. Further, the land, which was subject matter before the valuation committee was admeasuring 1000 sq. mtrs., whereas the lands under acquisition are ranging from 80 sq. mtrs., to 5675 sq. mtrs., for different parcels of lands. In our view, the deduction of 10% was reasonable even if the size of the lands before the valuation committee and lands under acquisition were to be considered. Further, towards N.A. Factor, 30% is already considered as per the view taken by this Court in the above referred decision in the case of State of Gujarat (Supra). Under these circumstances, we find that the deduction of 40% is rightly considered by the Reference Court. 8. Further, towards N.A. Factor, 30% is already considered as per the view taken by this Court in the above referred decision in the case of State of Gujarat (Supra). Under these circumstances, we find that the deduction of 40% is rightly considered by the Reference Court. 8. The attempt to contend that the distance between two lands had not come on record or that the location of the lands was also not made comparable cannot be countenanced for two reasons; one is that no evidence whatsoever was led on behalf of the respondent for showing the market value of the land, otherwise than as was assessed by the valuation committee on behalf of the respondent. Even in the cross-examination of the claimant or the officer of the Town Planning Department, no such question is put to the witness to show that the location was not comparable or otherwise. Therefore, we find that such contention cannot be accepted. 9. In our view, as such the learned Judge has decided the matter based on the decision of this Court in the case of State of Gujarat (Supra) and hence, the approach of the learned Judge, even otherwise also, was if to follow the judgement of this Court, the same cannot be said to be erroneous. 10. The other benefits granted by the Reference Court are statutory benefits and hence, no interference is called for on the said aspects. 11. In view of the above, as the present appeals are meritless, the same are dismissed. Considering the facts and circumstances, the difference of the amount of compensation, if not deposited, the same shall be deposited within a period of eight weeks from today.” 5. Therefore, if the aforesaid view is taken into consideration, it cannot be said that the Reference Court has committed error in relying on the valuation report. The facts if further examined, goes to show that the same principles as were considered for deduction of 40% and for appreciation at the rate of 10% for the time gap between the date of valuation and the date of the notification under Section 4 has been taken into consideration and thereafter, the reference court has arrived at the market value at Rs. 269.46 per sq.mtr. and as Rs. 8 per sq.mtr. was already awarded as compensation, the net amount of Rs. 261.46, and by rounding off, Rs. 261 per sq. mtr. 269.46 per sq.mtr. and as Rs. 8 per sq.mtr. was already awarded as compensation, the net amount of Rs. 261.46, and by rounding off, Rs. 261 per sq. mtr. has been awarded as additional compensation. Additionally, the Reference Court has awarded statutory benefit of increase in the market price under Section 23(1A), solatium under Section 23(2) and interest under Section 28 of the Act. In our view, it cannot be said that any error has been committed by the Reference Court in assessing the market value of the land and in awarding compensation.” 6. Under the circumstances, the appeal is meritless. Therefore, dismissed.” 5. The aforesaid shows that on the principle of taking the basis of the valuation made by the valuation committee of the Government for the purpose of assessing the market value, is accepted by the Court and the same method has been applied by the Reference Court in the present judgment. The only difference is that the land in question is located at village Santhal whereas in the above referred case, the land was located at village Kasalpur and the boundaries are common. Such aspect has also been recorded by the Reference Court in its judgment at Para 19. 6. However, the learned Counsel appearing for the appellant also raised the contention that even if the boundaries are located of both the villages, the distinguishing feature for the land in question would be that the village Santhal is interior to the highway in comparison to the village Kasalpur, which is on the road. The learned Counsel relied upon the official publication of the map for showing the location of village Santhal. 7. Mr. Prjapati, learned Counsel appearing for the original claimants is not in a position to dispute that the location of village Santhal is interior to State highway. However, as per his submission, the development of village Santhal is more in comparison to village Kasalpur and the road is also passing from Santhal to Kasalpur but of course not the State highway. He submitted that if the development was to be considered, the market price will be higher in comparison to village Kasalpur. In his submission, taking into consideration the said aspect, the Special Land Acquisition Officer awarded higher compensation at Rs. 15 in comparison to Rs. 8.85 for the village Kasalpur. He submitted that if the development was to be considered, the market price will be higher in comparison to village Kasalpur. In his submission, taking into consideration the said aspect, the Special Land Acquisition Officer awarded higher compensation at Rs. 15 in comparison to Rs. 8.85 for the village Kasalpur. He therefore submitted that the valuation made for the land of village Kasalpur can fully be relied upon and no deduction would be called for. 8. The examination of the impugned judgment of the Reference Court shows that at Paragraph 21, the learned Judge has relied upon the valuation made by the valuation committee for allotment of the land at village Kasalpur. The basis is taken as that of Rs. 305. In our view, the fact that the location of village Santhal is interior in comparison to the location of village Kasalpur which is on the State highway itself, it was required for the learned Judge to deduct at least 5% towards location of the village and/or the land as the case may be. If 5% is deducted, such amount could come to Rs. 15.25 and if rounded off, it come to Rs. 15 and if deducted from Rs. 305, the net amount would come to Rs. 290 per sq.mtr. Out of the said amount, 40% is to be deducted as per the view taken by the Reference Court and such amount of 40% would come to Rs. 116. If the aforesaid amount of Rs. 116 is deducted from the above referred amount of Rs. 290, the net amount would come to Rs. 174 per sq.mtr. Further, there is time gap of 2 years and 10 months and if the appreciation is considered at the rate of 10% per year, roughly 3 years, i.e., 30%, the said amount would come to Rs. 52.20 and if rounded off, it would come to Rs. 52, and if added to the aforesaid amount of Rs. 174, it would come to Rs. 226 per sq.mtr. Out of the said amount of Rs. 226, Rs. 15 per sq.mtr. has already been awarded as compensation. Hence, the net amount would come to Rs. 211 per sq.mtr. 9. Under these circumstances, the judgment and award passed by the Reference Court for the additional compensation exceeding the amount of Rs. 211 per sq.mtr. deserves to be modified to that extent. 226, Rs. 15 per sq.mtr. has already been awarded as compensation. Hence, the net amount would come to Rs. 211 per sq.mtr. 9. Under these circumstances, the judgment and award passed by the Reference Court for the additional compensation exceeding the amount of Rs. 211 per sq.mtr. deserves to be modified to that extent. The other benefits conferred by the Reference Court are statutory in nature and therefore, we are not inclined to disturb the same, save and except the observation that on account of the reduction of the additional compensation, such amount would proportionately get reduced. 10. In view of the aforesaid observations and discussions, the impugned judgment and award of the Reference Court for awarding compensation exceeding the amount of Rs. 211 per sq.mtr. as additional compensation is quashed and set aside. It is observed that the original claimants shall be entitled to the additional compensation at Rs. 211 per sq.mtr. The original claimants shall also be entitled to the increase in the compensation under Section 23 (1A), solatium under Section 23(2) and interest under Section 28 of the Act on the aforesaid amount of additional compensation. 11. The appeals are partly allowed to the aforesaid extent. Considering the facts and circumstances, no order as to costs.